Professional Documents
Culture Documents
United States Court of Appeals, Second Circuit.: No. 228, Docket 79-7456
United States Court of Appeals, Second Circuit.: No. 228, Docket 79-7456
2d 471
6 Media L. Rep. 1085
Howard C. Buschman III, New York City (Willkie, Farr & Gallagher,
John M. McEnany, Jeanne M. Luboja, New York City, of counsel), for
plaintiff-appellant.
Pamela McGovern Gaskins, New York City (Allen G. Schwartz, Corp.
Counsel of the City of New York, L. Kevin Sheridan, New York City, of
counsel), for defendants-appellees.
Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, Katherine J.
Trager, Jane E. Bloom, Michael H. Dolinger, Asst. U. S. Attys., New
York City, of counsel, on amicus curiae brief for the U. S.
Before WATERMAN, MOORE and MANSFIELD, Circuit Judges.
MOORE, Circuit Judge:
This appeal raises interesting questions of the extent to which the First
Amendment rights of demonstrators may be subjugated to an overriding
governmental interest. Appellant Concerned Jewish Youth ("CJY") sought a
declaration under 42 U.S.C. 1983 (1976) that restrictions applied to its
demonstrations in front of the Russian Mission in New York City violated the
The members of CJY sought to protest on the sidewalk in front of the Russian
Mission to publicize and condemn the Soviet Union's treatment of Jews. The
Russian Mission is on East 67th Street between Lexington and Third Avenues
in the 19th police precinct in the City of New York. A co-chairman of CJY
went to the 19th precinct in June, 1978 to apply for a permit to use sound
equipment in front of the Mission. The Captain in charge, Mario Selvaggi,
informed CJY that only twelve persons would be allowed to demonstrate in a
"bull pen" diagonally across the street from the Mission.1 Any additional
demonstrators could protest on East 67th Street between Park and Lexington
Avenues. (Tr. 23, 143). In addition, Captain Selvaggi informed CJY that no
sound device would be allowed on East 67th Street between Third and
Lexington Avenues (i. e., on the Mission block). Sound devices would only be
permitted on the northeast corner of East 67th Street and Lexington Avenue.
(Tr. 25, 44). The Captain referred to the "Dollinger" decision, which outlined
various restrictions which would be put on demonstrations by certain groups in
front of the Mission.2 Although CJY was not a party to that action, Captain
Selvaggi applied the rationale behind the Dollinger restrictions to CJY.
instructed to do. Another demonstration planned for January 5, 1979 was not
held because CJY felt that the demonstration, like the previous one, would be
"ineffective and unsuccessful". (Appellant's Br. 15).
5
CJY makes various First Amendment claims that will be bifurcated for the
purpose of discussion. The first claim is that the restrictions on the location and
number of demonstrators violate their rights under the First Amendment. The
second is that the restrictions on the use of a sound device impair their freedom
of speech. We find that the time, place and manner restrictions in this case are
necessary to further a strong governmental interest, and affirm the holding of
the District Court.
I.
6
The right to a public forum for the discussion and interplay of ideas is one of
the foundations of our democracy. "Wherever the title of streets and parks may
rest, they have immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions." Hague v. CIO, 307
U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939).
However, the right to speak, assemble, and discuss is not absolute. Although
the "government has no power to restrict such activity because of its message",
Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33
L.Ed.2d 222 (1972) (footnote omitted), it is "equally clear . . . that reasonable
'time, place and manner' regulations may be necessary to further significant
governmental interests, and are permitted". Id. (footnote omitted). The Supreme
Court recently stated "We have often approved restrictions (on time, place and
manner) provided that they are justified without reference to the content of the
regulated speech, that they serve a significant governmental interest, and that in
so doing they leave open ample alternative channels for communication of the
information". Virginia Pharmacy Board v. Virginia Consumer Council, 425
U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). The balancing
process which is required in these situations was best described by Justice
Blackmun: "Although American constitutional jurisprudence, in the light of the
First Amendment, has been jealous to preserve access to public places for
purposes of free speech, the nature of the forum and the conflicting interests
involved have remained important in determining the degree of protection
afforded by the Amendment to the speech in question". Lehman v. City of
Shaker Heights, 418 U.S. 298, 302-303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770
(1974) (citations omitted).
10
The question then comes down to one of balancing the interests involved. We
appreciate that the rights granted by the First Amendment are important, but
hold that the governmental interest in the protection of the Russian Mission and
the residents of the area outweighs the comparatively minor restrictions placed
on CJY.
11
The government interest in providing security, safety and silence may, at times,
be superior to asserted First Amendment rights. A statute, ordinance or
regulation which embodies these interests will be valid even though it infringes
on purported constitutional guarantees. Thus, the government may properly
restrict First Amendment rights associated with jails (all demonstrations,
Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149
(1966)); schools (loud behavior may be excluded, Grayned v. City of Rockford,
408 U.S. 104, 121, 92 S.Ct. 2294, 2306, 33 L.Ed.2d 222 (1972)); courthouses
(statute prohibiting picketing valid on its face, Cox v. Louisiana, 379 U.S. 559,
564, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965)); and military installations
(political campaign appearances may be banned, Greer v. Spock, 424 U.S. 828,
838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976)).
12
The United States and the New York City Police have a substantial interest in
protecting foreign officials and their property. The New York City Police,
pursuant to their mandate in 435 of the New York City Charter, must
"preserve the public peace, . . . (disperse) assemblages which obstruct the free
passage of public streets, sidewalks, parks and places; (and) protect the rights of
persons and property . . . ." This includes the members and property of a
Foreign Mission.
13
14
We do not think that the federal statute (18 U.S.C. 112) was designed to take
all power to control demonstrations at Foreign Missions away from local
authorities as CJY argues. The relevant provision was enacted "to protect the
peace, dignity and security of foreign officials and guests in their embassies,
consulates, missions, residences and offices". Sen.Rep.No. 92-1105, 92d Cong.,
2d Sess. reprinted in U.S.Code Cong. & Admin.News 4316, 4328 (1972). Any
actions local authorities may take to aid in protecting foreign officials furthers
this intent of Congress in enacting the legislation. The law did not set maximum
standards of protection, but rather set minimum standards, and specifically left
open the situation where local authorities might use stricter controls. See Pub.L.
92-539, 86 Stat. 1070, 1073, 3 (1972); Pub.L. 94-467, 90 Stat. 1997, 2001,
10 (1976).
15
When the New York City Police instituted these restrictions on demonstrations
in front of the Mission, they were simply protecting the Mission and its
personnel. There have been numerous instances of violence at the Russian
Mission. In 1971 and 1976 shots were fired at and into the Mission. In 1975,
containers of red paint were thrown at the Mission splattering paint on walls
and doors. Finally, in 1977 and 1978 there were problems with unruly
demonstrators in front of the Mission. (Br. of U.S. at 2-3). More recently, the
Russian Mission was bombed for the first time.4
16
The Police implemented the restrictions because of this violence and because
they were aware that even a peaceful demonstration could be infiltrated by
members of a violent group. (Tr. 85-86). One Co-chairman of CJY admitted
that through deceit or inadequate screening by CJY, violent demonstrators
could be among their ranks at a protest. (Tr. 54-56). Finally, one police officer
testified that even peaceful demonstrators walking immediately adjacent to the
Mission could become stirred to violence, due to the emotional reaction to
seeing the Russian Mission. (Tr. 132). Because of the potential violence which
might result when persons demonstrate in front of the Mission, the restrictions
were properly imposed.
17
Testimony at trial established that the only reasonable place for the 12
demonstrators would be in the bull pen. (Tr. 127-30). There they can be seen
from the Mission, but do not interfere with Mission personnel or property, and
do not interfere with the synagogue, police station, schoolhouse, and firehouse
across the street from the Mission. These restrictions are no greater than
required to maintain the governmental interest involved in this case. Therefore,
we agree with and affirm Judge Pollack's holding:
18
"There
is substantial empirical evidence that to allow expanded demonstrations in
front of the Soviet Mission would unduly and unnecessarily impair this interest (in
protecting the Soviet Mission). The area presently designated for picketing was
selected for reasons which make sound sense under the special conditions existing
on the block; the requirement that after dark, demonstrators are asked to reduce the
noise level is entirely reasonable; the object of the police to accommodate both the
demonstrators' right of assembly and the rights of nondemonstrators to peaceful and
unobstructed passage consistent with safety meets fundamental concerns fairly.
Basically the whole subject matter is one of degree and judgment and no better
yardsticks than the ones employed are presented or apparent." 469 F.Supp. 1296 at
1303.
19
The restrictions are in line with Justice Marshall's declaration that "The nature
of a place, 'the pattern of its normal activities, dictate the kinds of regulations of
time, place, and manner that are reasonable.' " Grayned v. City of Rockford,
408 U.S. at 116, 92 S.Ct. at 2303 (footnote omitted).
20
Finally, the privacy interests of the residents of the block must be briefly
considered. "(T)he homes of men, sometimes the last citadel of the tired, the
weary and the sick, can be protected by government from noisy, marching,
tramping, threatening picketers and demonstrators . . . ." Gregory v. Chicago,
394 U.S. 111, 125-26, 89 S.Ct. 946, 954, 22 L.Ed.2d 134 (1969) (Black, J.
concurring opinion). See also, Cohen v. California, 403 U.S. 15, 21, 91 S.Ct.
1780, 1786, 29 L.Ed.2d 284 (1971); Kovacs v. Cooper, 336 U.S. 77, 89, 69
S.Ct. 448, 454, 93 L.Ed. 513 (1949). Here, the residents of the block do have
some right not to be obstructed, bothered, or abused by myriad demonstrators
on their street. Although the New York Police have not explicitly instituted the
restrictions because of this factor, they have tacitly acknowledged a need for
privacy in adopting the standards set out in Dollinger.5 This privacy interest is
an important consideration in tilting the balance toward the constitutionality of
the restrictions.
21
Further supporting our holding is the fact that the restrictions impose only a
minimal inhibition on the ability of CJY to communicate its ideas. The group is
free to demonstrate diagonally across from the Mission where the Mission
personnel can see and hear them. (Tr. 142). Additional space for demonstrating
is available in the immediate area. When asked what was the purpose of the
demonstration in front of the Mission, a co-chairman of CJY stated "To
publicize the cause of Soviet Jewry". (Tr. 20). This suggests that the audience
at which the demonstration was directed was the American public at large. We
see little impact on the effectiveness of the communication, or on the ability of
CJY to convey its ideas to those persons, because of these restrictions. The fact
that the restrictions only minimally inhibit expression serve to lighten the
balance on the side of CJY, confirming our holding that these restrictions are
permissible.
22
One final point that must be discussed before addressing the "sound device"
restriction is the manner in which these restrictions were imposed. Surely a
narrowly drafted legislative enactment specifically outlining the restrictions
would be constitutionally proper. But this case involves the decision of the
police made according to power vested in them by a municipal ordinance.
Pursuant to that ordinance, the police adopted restrictions on demonstrations in
front of the Russian Mission, which had been outlined, in part, in a state court
opinion.
23
24 police department and force shall have the power and it shall be their duty to
"The
preserve the public peace . . . disperse unlawful or dangerous assemblages and
assemblages which obstruct the free passage of public streets, sidewalks, parks, and
places; protect the rights of persons and property, guard the public health, preserve
order at . . . all public meetings and assemblages; (and) . . . control and restrict the
movement of . . . pedestrian traffic for the facilitation of traffic and the convenience
of the public as well as the proper protection of human life and health. . . ."
25
We find that the restrictions imposed by the police pursuant to the mandate of
435 are constitutionally proper. Although the ordinance gives the police a
certain amount of latitude in protecting persons, "Condemned to the use of
words, we can never expect mathematical certainty from our language".
Grayned v. City of Rockford, 408 U.S. at 110, 92 S.Ct. at 2300 (footnote
omitted). "It is, of course, undisputed that appropriate, limited discretion, under
properly drawn statutes or ordinances, concerning the time, place, duration, or
manner of use of the streets (and presumably sidewalks) for public assemblies
may be vested in administrative officials. . . . " Cox v. Louisiana, 379 U.S. 536,
558, 85 S.Ct. 453, 466, 13 L.Ed.2d 471 (1965). This is especially true where, as
here, the ordinance has been given a narrow construction by the police
department. Furthermore, here there is little real effect on the legitimate
expression of ideas.6 As has been pointed out, CJY is allowed to demonstrate
and convey its feelings within sight of the Russian Mission. The use of the
overflow area by the excess over 12 demonstrators does not have a real and
substantial effect on CJY's conveying the claimed iniquity of the treatment of
Jews in Russia.
27
Additionally, the fact that the ordinance deals with police protection in New
York City is of import. As Justice Frankfurther has said:
II.
30
We turn now to the restriction on the use of sound equipment on the Mission
block. In this case, use of the device was not banned, but rather the location at
which the loud speaker could be used was restricted. That restriction also
passes constitutional muster, and we affirm the decision of the District Court on
this point.
31
We note initially that because sound devices have a way of making a listener
out of someone who may not wish to hear, their use may be curtailed. See
Kovacs v. Cooper, 336 U.S. 77, 86-87, 69 S.Ct. 448, 453, 93 L.Ed. 513 (1949).
This is because freedom of speech does not include the right to intrude or force
one's viewpoint on a hapless resident or bypasser. Cohen v. California, 403
U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971). "In his home or on
the street (an unwilling listener) is practically helpless to escape this
interference with his privacy by loud speakers except through the protection of
the municipality." Kovacs, supra, 336 U.S. at 87, 69 S.Ct. at 453. Finally, the
Supreme Court has pointed out "The hours and place of public discussion can
be controlled". Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92
L.Ed. 1574 (1948).
32
We hold that as applied to the appellants in this case the restrictions on their use
of sound equipment, imposed after tacit consideration of the Dollinger decision
and the New York Administrative Code,7 do not run afoul of the constitution.
Implicit in the restrictions is the finding that there is an overriding
governmental interest in maintaining the area immediately in front of the
Russian Mission free from excessive noise. This is primarily for the benefit of
the personnel working and living in the Mission, but is also for the benefit of
the area residents and the various institutions near the Mission (a school,
synagogue, firehouse, and police station). We cannot say that the restriction,
adopted by the police department after consideration of the locale, imposes
such a barrier to CJY's right to free expression so as to be constitutionally
infirm. See A Quaker Action Group v. Morton, 516 F.2d 717, 734
(D.C.Cir.1975). Such restrictions are especially necessary in the City of New
York where multifarious interests associated with the millions of residents,
visitors, and workers must be balanced so that all may live in mutual tolerance.
33
34
36
We start with certain indisputable propositions of law. The first of these is that
public places, particularly streets and sidewalks, are the normal and natural
locations for our citizens' exercise of their First Amendment right of free
speech.
37
"Wherever
the title of streets and parks may rest, they have immemorially been held
in trust for the use of the public and, time out of mind, have been used for purposes
of assembly, communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from ancient times, been a
part of the privileges, immunities, rights, and liberties of citizens." Hague v. C. I. O.,
307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (Roberts, J.).
38
See also Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714,
2717, 41 L.Ed.2d 770 (1974); Wolin v. Port of New York, 392 F.2d 83, 89 (2d
Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968).
39
While the state may reasonably regulate the time, place and manner of the
exercise of First Amendment rights as necessary to protection of other
compelling public interests, Grayned v. City of Rockford, 408 U.S. 104, 11516, 92 S.Ct. 2294, 2302-03, 33 L.Ed.2d 222 (1972); Police Dept. v. Mosley,
408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972); Adderley v.
Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Cox v. Louisiana,
379 U.S. 536, 554-55, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965), "time and
place" regulations can enormously hinder the individual's ability to engage in
effective advocacy. A number of limitations on this type of regulation are
therefore essential. Where discretion is to be vested in administrative officials,
it must be "appropriate, limited discretion under properly drawn statutes or
ordinances." Cox v. Louisiana, supra, 379 U.S. at 558, 85 S.Ct. at 466
(emphasis supplied). See also Shuttlesworth v. City of Birmingham, 394 U.S.
147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Saia v. New York, 334 U.S. 558,
562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (1948). The exercise of First
Amendment rights may not be abridged at the unbridled will or broad discretion
of government officials, even though this would doubtless facilitate law
enforcement and spare public expense and inconvenience. The more substantial
the encroachment on protected rights, the greater the need for carefully
considered and articulated standards. "Access to the 'streets, sidewalks, parks,
and other similar public places . . . for the purpose of exercising (First
Amendment rights) cannot constitutionally be denied broadly. . . .' " Grayned v.
City of Rockford, supra, 408 U.S. at 117, 92 S.Ct. at 2304 (quoting
Amalgamated Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 315,
88 S.Ct. 1601, 1606, 20 L.Ed.2d 603 (1968)).
40
Even when regulations are fully authorized by explicit and narrow legislative
authority, they must be "narrowly tailored to further the State's legitimate
interest," Grayned v. City of Rockford, supra, 408 U.S. at 116-17, 92 S.Ct. at
2303-2304; Police Dept. v. Mosley, supra; Cox v. New Hampshire, 312 U.S.
569, 575-76, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941). The state bears the
burden of justifying restrictions, e. g., Cohen v. California, 403 U.S. 15, 20, 91
S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). Regulations which take the form of
prior restraints are subject to particularly exacting judicial scrutiny.
Organizations for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575,
1577, 29 L.Ed.2d 1 (1971); Carroll v. President & Comm'rs of Princess Anne,
393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). Moreover,
exercise of First Amendment rights, when logically related to a particular
forum, is further protected from regulations which would preclude the use of
that place. Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637
(1966) (plurality opinion); Albany Welfare Rights Org. v. Wyman, 493 F.2d
1319, 1323-24 (2d Cir.), cert. denied, 419 U.S. 383, 95 S.Ct. 66, 42 L.Ed.2d 64
(1974).
41
In balancing the individual's right to demonstrate against the concern for quiet
or the protection of others, the competing interests must be assessed on an
44
None of the foregoing principles are likely to make the policeman's lot a happy
one. The proper acquittal of this heavy responsibility is difficult. The officer's
life would be easier if he had broad discretion to squelch free speech and
assembly without the necessity of tailoring any restraints to what is absolutely
necessary in each individual case. Unfortunately such discretion has been
permitted in the present instance, where the police have been accommodated by
both state and city. The result, unsurprisingly, is an excessive restraint. With
due respect, the majority has either misconceived the function of the police in
this tension or given only lip service to basic time-honored principles of free
speech and expression.
45
Section 435 of the New York City Charter provides in pertinent part that "(t) he
police department and force shall have the power . . . to preserve the public
peace (and) disperse unlawful or dangerous assemblages and assemblages
which obstruct the free passage of the public streets, sidewalks, parks and
places." It is pursuant to this all-encompassing grant of power that the police
claim the authority to impose restrictions on the block of the Soviet Mission.
This is not their first such essay. The police previously attempted to bar all
demonstrations on this very block, claiming authority under this same general
statute. The courts of New York had no difficulty concluding that 435 could
not constitutionally, and did not, authorize such a prohibition:
46
"Neither
City nor State authorizes the police to permanently and absolutely close a
public street to those persons seeking to exercise their First Amendment rights. Such
prohibition is therefore unlawful." People v. Solomonow, 56 Misc.2d 1050, 291
N.Y.S.2d 145, 150 (N.Y. County 1968).
47
While the present restrictions on demonstrations are not quite as absolute as the
total ban invalidated in Solomonow, their effect is nearly the same. Twelve
lonely demonstrators, without sound equipment, may walk in a small
barricaded area far removed from the Soviet Mission at the end of the block on
the other side of the street. Should any more than 12 wish to demonstrate, they
must move to a different block. This handful of demonstrators is unlikely to be
seen or heard, while demonstrators choosing to picket other sites must endure
no such restrictions. If the statute does not authorize absolute bans, I must
conclude that the present regulations are similarly unauthorized and unlawful.
48
49
Seven years later, after being advised of the CJY's plans the police, rather than
fulfilling their duty of making an individualized determination, informed them
of the policy, pursuant to the unlimited discretion vested in them by 435, of
applying the "Dollinger" order to all persons who might seek to demonstrate in
the future. This was patently wrong and violated the police's basic obligation to
determine what restrictions, if any, might be required in this entirely different
case. "(I)n our system, undifferentiated fear or apprehension of disturbance is
not enough to overcome the right to freedom of expression." Police Dept. v.
Mosley, supra, 408 U.S. at 101, 92 S.Ct. at 2293 (quoting Tinker v. Des
Moines School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731
(1969)).
51
Indeed, as the record shows, this is an entirely different case from Millan
House v. Murphy. If the police had investigated they would have found that,
unlike the parties to the "Dollinger" case, the CJY has rejected association with
militant organizations working in the cause of Soviet Jewry. The CJY, in
contrast to the Jewish Defense League (JDL) and Student Struggle for Soviet
Jewry (SSSJ), is dedicated to accomplishment of its aims without violence. It
first approached the police, not vice versa, on the subject of demonstrating,
even though it was under no legal obligation to do so. It sought to demonstrate
peacefully by simply marching in an oval shape during daylight hours on the
15' 4 wide sidewalk in front of the Soviet Mission, without harassing anyone
entering or leaving the Mission or blocking the street or entrance to any
building. The CJY has indicated that it was even willing to consider being
required to restrict its demonstrations to a "bull-pen" or confined area in front of
the Mission or to one side of its entrance. The CJY has no history of violence
and there is no evidence that it might be goaded into violence or harassment or
used as a cover for such kind of operations. Indeed Judge Pollack, who viewed
some CJY members, referred to it as "an organization of nice young men from
Queens whose purposes have a very therapeutic appeal."
52
district court hearing) which did not involve any demonstration at all. However,
it is not contended that any of this had anything to do with the CJY, which is a
peaceful organization, or its members. The CJY, moreover, does not seek
"large-scale" demonstrations and its history of giving advance notice to the
police of its plan to demonstrate is inconsistent with fears of violence or
lawlessness on its part. Many people walk past the Soviet Mission daily. If
someone intends to bomb the Mission, he will do it without any assistance from
the CJY.
53
The police further seek support for their action by pointing to 18 U.S.C. 112,
which makes it a federal crime to demonstrate within 100 feet of a foreign
mission with intent to coerce, harass or obstruct a foreign official. That statute,
however, affords the City no justification for the draconian restrictions imposed
here. Aside from the necessity of proving specific intent and in the present case
the CJY expressly disclaims any intent to harass or obstruct members of the
Mission the same statute provides that nothing in it shall be construed to
abridge First Amendment rights, 18 U.S.C. 112(d). Moreover, in enacting
112 Congress took pains repeatedly to express concern for recognition of the
right to "legitimate expression and assembly." See S.Rep. No. 92-1105, 92nd
Cong., 2nd Sess. (1972), U.S.Code Cong. & Admin.News 4316, 4328.
54
In short, the restriction imposed by the New York police on the CJY is
impermissibly broad and, in the absence of a finding based on substantial
evidence that less restrictive alternatives would not reasonably protect the
public interest in peace and order, is a violation of appellants' constitutional
rights. It embodies a philosophy of governmental power that is contrary to basic
precepts repeatedly endorsed by the Supreme Court with respect to the First
Amendment. The police erroneously presume that an order issued with respect
to other persons under other circumstances may thereafter be applied to all,
regardless of a sharp difference in circumstances. They also presume that any
would-be demonstrators, though not shown to be associated with the parties to
the earlier order, are dangerous. They ignore the fact that to justify these
extreme restrictions, the burden is on the police to investigate and balance the
interests in each case, with respect for the presumption in favor of exercise of
First Amendment rights. This difficult task they have refused to face.
55
Moreover, the attitude of the City is that since the "Dollinger" order permits
some demonstrating, however far from the Mission, that should suffice. This
ignores the principle that since the effectiveness of any demonstration depends
on its proximity to the target and the relevant audience, it is unlawful to exile
demonstrators to an irrelevant milieu. Wolin v. Port Authority of New York,
supra, 392 F.2d at 90. The purposes of a peaceful and orderly rally or
demonstration are to try to impress the target in this case the Soviet occupants
of the Mission and to publicize the cause to others. Neither objective is served
by a demonstration elsewhere, around the corner or at the other end of the
block on the other side of the street (where the sidewalk is substantially the
same width, 16 feet 4 inches as compared with 15 feet 4 inches). If persons may
be permitted to demonstrate in front of a school, Grayned v. City of Rockford,
supra, in a library, Brown v. Louisiana, supra, or at the White House and its
executive offices, A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir.
1975), surely a right to demonstrate in front of a foreign mission should not be
denied out of hand. See Greenberg v. Murphy, 329 F.Supp. 37 (S.D.N.Y.1971)
(permitting picketing at side entrance of United States Mission to UN and
presentation of petitions at front entrance).
56
For similar reasons the police's absolute ban on use by the CJY of any sound
equipment whatsoever on the Soviet Mission block cannot be justified as a
matter of law. Indeed it clearly violates 435-6.0 of New York City's
Administrative Code, which obligates the City to issue sound permits under
specified conditions. CJY has unequivocally agreed in writing to abide by these
conditions, affirming that it would not employ sound equipment during school,
worship or sleeping hours. The effect of the denial is to give the Mission more
protection from sound equipment than other New York City residents. We are
not here confronted with the constitutionality of a law prohibiting all sound
equipment in residential areas, which would present a different case, but with a
law that entitles the CJY to a permit. The majority urges that the police gave
"tacit consideration" to the statute. Surely the police must do more than give
tacit consideration to the governing law they must follow it.
57
58
unhesitatingly applied in times of crisis and tranquility alike. "If the provisions
of the Constitution be not upheld when they pinch as well as when they
comfort, they may as well be abandoned." Home Building & Loan Assn. v.
Blaisdell, 290 U.S. 398, 483, 54 S.Ct. 231, 256, 78 L.Ed. 413 (1943)
(Sutherland, J., dissenting). With due respect, the majority in my view abdicates
its responsibility for insuring that First Amendment rights are not lightly cast
aside or ignored in the name of law and order.
59
For these reasons I would remand the case to the district court with directions to
enter a preliminary injunction on terms and conditions that will permit
demonstrations by the CJY near the Soviet Mission, reasonably limited as to
time, place, method and number of participants, in lieu of the cavalier denial
through invocation of the so-called "Dollinger" order.
This bull pen was approximately 118' east of the front entrance of the Mission
on the north side of East 67th Street (the Mission is on the south side). It was in
front of an apartment building at a point on the block where the sidewalk is the
widest. (Tr. 129)
Millan House Inc. v. Murphy, Civ. No. 10560 (Sup.Ct.N.Y. County 1971).
Dollinger was a suit brought by residents of the area against, among others, the
New York Police and the JDL
At trial, a co-chairman of CJY stated that CJY's right to convey its point of view
even in the bull pen and surrounding areas was precluded because "I would
assume that the press would not be very interested in covering 12 people in a
bull pen" (Tr. 35), and that "the 11 people with me, were not very much
inclined to think that the rally was a success and want to do it again. They were
kind of embarrassed. I would have trouble getting those particular people to
come back". (Tr. 35-36)
On Tuesday evening, December 11, 1979, the Russian Mission was bombed by
a terrorist group. Four policemen and four employees of the Mission were
injured in the bombing. N.Y. Times, Dec. 12, 1979, A, p. 21, col. 1-6
Dollinger was a suit by residents of the area. Demonstrators were limited in the
area specifically because of the previous infringement on the residents' privacy
right
Cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276,
45 L.Ed.2d 125 (1975) (discussion of criteria used to determine if a state statute
is valid on its face)
Section 435-6.0 which deals with the regulation of sound devices in New York
City